I
would be the covering the main issue and the connected issue concerning the
right of a female Hindu, after the amendment of 2005. Prior to the amendment of
2005 the female Hindu was not entitled to have a part in the
ancestral property and was not a member of coparcenary. From July 2005 the new
Act has come into force and the daughter is allotted the same share as is
allotted to a son. The daughter shall have a right to claim partition in the
joint family properties as well as the right to claim right of partition in the
dwelling house of the joint family and she shall also have a right to claim
partition during the lifetime of her father.
The provision: Section 6 of Hindu Sucession
ACT,1956
6. Devolution of interest in coparcenary property.
—(1) On and from the commencement of the Hindu Succession (Amendment) Act,
2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of
a coparcener shall,—
(a) by birth become a coparcener in her own right
in the same manner as the son;
(b) have the same rights in the coparcenary
property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect
of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener
shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section
shall affect or invalidate any disposition or alienation including any
partition or testamentary disposition of property which had taken place before
the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes
entitled by virtue of sub-section (1) shall be held by her with the incidents
of coparcenary ownership and shall be regarded, notwithstanding anything
contained in this Act or any other law for the time being in force in, as
property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of
the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a
Joint Hindu family governed by the Mitakshara law, shall devolve by
testamentary or intestate succession, as the case may be, under this Act and
not by survivorship, and the coparcenary property shall be deemed to have been
divided as if a partition had taken place and,—
(a) the daughter is allotted the same share as is
allotted to a son;
(b) the share of the pre-deceased son or a
pre-deceased daughter, as they would have got had they been alive at the time
of partition, shall be allotted to the surviving child of such pre-deceased son
or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a
pre-deceased son or of a pre-deceased daughter, as such child would have got
had he or she been alive at the time of the partition, shall be allotted to the
child of such pre-deceased child of the pre-deceased son or a pre-deceased
daughter, as the case may be.
Explanation. —For the purposes of this sub-section,
the interest of a Hindu Mitakshara coparcener shall be deemed to be the share
in the property that would have been allotted to him if a partition of the
property had taken place immediately before his death, irrespective of whether
he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession
(Amendment) Act, 2005*, no court shall recognise any right to proceed against a
son, grandson or great-grandson for the recovery of any debt due from his
father, grandfather or great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or great-grandson to
discharge any such debt:
Provided that in the case of any debt contracted
before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing
contained in this sub-section shall affect—
(a) the right of any creditor to proceed against
the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in
satisfaction of, any such debt, and any such right or alienation shall be
enforceable under the rule of pious obligation in the same manner and to the
same extent as it would have been enforceable as if the Hindu Succession
(Amendment) Act, 2005 had not been enacted.
Explanation. —For the purposes of clause (a), the
expression “son”, “grandson” or “great-grandson” shall be deemed to refer to
the son, grandson or great-grandson, as the case may be, who was born or
adopted prior to the commencement of the Hindu Succession (Amendment) Act,
2005*.
(5) Nothing contained in this section shall apply
to a partition, which has been effected before the 20th day of December, 2004.
Explanation. —For the purposes of this section
“partition” means any partition made by execution of a deed of partition duly
registered under the Registration Act, 1908 (16 of 1908) or partition effected
by a decree of a court.]
Comman Issues:
(1) What
is the right of the daughter of a co-parcener in a Joint Hindu Family governed
by Mitakshara Law in co-parcenary property by virtue of the amendment?
The daughter of a co-parcener will have all rights
with respect to the property which a male co-parcenar had before the amendment,
the rights here include the right to be a member of coparcenary with all rights
and liabilities attached in “her own right”. In comman parlance the consequence
of the amendment is that even a daughter can get a share in partition.
(2) Whether a married daughter can inherit the
property in respect of which partition has not yet taken place?
Yes a married daughter would also get a share on partition
if the partition of the Hindu Family property has not already taken place.
(3) Whether
Section 6 is not applicable to partitions already affected?
No, the section will not invalidate
any disposition or alienation including any partition or testamentary
disposition of property which had taken place before the 20th day of December,
2004
Law
students and lawyers may refer to Pushpalatha N.V. W/o Nemraj Vs. V. Padma Widow of Vasantha Kumar D.N., Asha N.V. W/o Shantharaj, N.V.
Tejkumar and N.V. Bahubali (Appi) ;AIR2010Kant124, 2010(2)KCCR1249 for a detailed analysis of
the amendment.
The author is a pracisting lawyer in
Delhi High court. She can be contacted at lawyer.soniasaini@gmail.com
